Barbara Underwood, liberal heroine

State Attorney General Barbara Underwood
State Attorney General Barbara Underwood
Hans Pennink/AP/Shutterstock
State Attorney General Barbara Underwood

Barbara Underwood, liberal heroine

How New York’s first female attorney general became a star without running for office.
December 25, 2018

Barbara Underwood was never supposed to be New York’s attorney general.

Having served as the first female solicitor general of the United States, during the Clinton administration, Underwood is no stranger to making history. But for most of her career, from when she clerked U.S. Supreme Court Justice Thurgood Marshall to her service as solicitor general of New York since 2007, she has been behind the scenes.

In May, however, Underwood stepped into the limelight when she assumed Eric Schneiderman’s post as attorney general of New York after four women accused Schneiderman of assault, leading to his resignation. In the seven months since, Underwood has put to rest the fears of liberals who thought that Schneiderman’s crusading work for corporate and public accountability would go unfinished. In less than a year, Underwood has racked up a record that many Democratic state attorneys general would envy, dealing blows to every progressive boogeyman from ExxonMobil to President Donald Trump.

“Our office has taken over 200 legal actions to protect New Yorkers from the policies of the Trump administration,” Underwood’s spokesperson, Amy Spitalnick wrote in an email. “And we’re winning.” Spitalnick also pointed out that Underwood is not simply “acting” or “interim” attorney general, but the real thing, officially making her the first woman to hold the title in New York.

A few of the cases the attorney general’s office has won since May include Trump’s agreement to dissolve the Trump Foundation amid allegations it was used for political benefit and self-dealing; a record-setting $174.2 million settlement with Charter Communications over Time Warner Cable allegedly defrauding its customers; a court ruling requiring the Environmental Protection Agency to address smog pollution in New York and Connecticut; and a settlement with seven New York hospitals that broke state law to charge sexual assault survivors for their own rape evidence kits.

Underwood has also filed suits against ExxonMobil for allegedly deceiving investors about the financial impact of climate change, and against Target and Walmart for selling and LaRose Industries for importing toys allegedly contaminated with lead.

This week, the biggest boost to Underwood’s national prominence was her win against the Trump Foundation, which drew bombastic ire from the president on Twitter. But the cases the attorney general’s office has pursued recently would also have a widespread impact that goes beyond national press coverage.

While some of these victories will have the biggest impact on New Yorkers, they all have a much broader significance, something James Tierney, former attorney general of Maine and Underwood’s friend, says is the result of state attorneys general growing in prominence in recent years. “It used to be an AG would be a local official and would do local things.” Now, Tierney said, all politics is national, putting state attorneys general on a much larger stage.

To those who know her, Underwood’s success is no surprise. “The lifetime reputation that she had immediately went into play and nobody missed a beat,” Tierney said. “If you were under investigation under Eric Schneiderman, you were immediately under investigation with Barbara Underwood.”

Underwood’s reputation is one that has rarely been made public, but is known to those who have worked in proximity to her. It’s a reputation, they say, that is founded on diligence and professionalism. “She's very smart – a nice person, not cool or aloof,” said Blair Horner, executive director of the New York Public Interest Research Group. Horner was a special advisor to Gov. Andrew Cuomo when he was attorney general, and served on an executive team with Underwood.

The lawsuit against ExxonMobil, Horner says, would send a strong message to an industry that has ignored climate change as the globe faces its disastrous consequences. “You're taking on one of the most profitable corporations on the planet, one deep with lawyers, one with immense resources, and that's one that she could have kicked the can on, but she did not,” Horner said. “That was an important decision that she made, and it could be arguably one of the most important legal cases in the world.”

Underwood’s performance as attorney general was not a foregone conclusion, however. “When AG Schneiderman precipitously resigned, there was concern about stability and continuity of the operation of the attorney general's office,” says Robert Abrams, a former attorney general for the state of New York. “Eric Schneiderman was a recognized leader, and he had been a veteran in that office, he had been there for two terms. There were large question marks upon his departure as to what was going to be the destiny of the office.”

In Abrams’ view, Underwood met the test. “She has the ability to not only bring those cases, but to successfully conclude them,” he said.

As the accusations against Schneiderman came out, everyone at the attorney general’s office was caught off guard, Tierney said. “This was a shock to the 300 to 400 lawyers working there,” he said. “They needed stability at the top and they got it the next morning.”

While there weren’t doubts about Underwood’s competence as a lawyer, there were some questions about her ability to rise to the public nature that the position of attorney general has traditionally carried. “Since it was clear that she was not going to run [for attorney general], a reasonable expectation would've been that she would be managing the law and running the office as capably as she could, but not as public, in terms of her activities,” Horner said.

What has been surprising is just how public Underwood’s work has been made in the past few months – something Horner said was likely a conscious decision made by the office. Rather than carrying on the work quietly, Underwood has become the face of these issues, Horner said. “Press releases go out, statements are being made, it's aggressively pushed out to the media.”

Even Tierney, who has known her for years, said he was surprised to see her take the stage. “It was like, well look at that! Barbara Underwood is having a press conference,” he said. While it likely wasn’t a natural transition to public life, Tierney said Underwood probably felt it was what the office required and willingly complied out of a sense of duty. “I don't know, maybe deep inside Barbara there was a bubbling politician all along,” he said.

Underwood’s time as a public-facing official will soon be up, with attorney general-elect Letitia James taking the reins next year. When that transition happens, Underwood may have a little more free time for hobbies outside of filing lawsuits. “She loves the theater, she reads a lot of fiction, she plays a great piano,” Tierney said.

Just don’t expect her to take her eye off the Trump administration. In a move Abrams and Tierney applaud, Underwood will stay on as solicitor general during James’ tenure.

Annie McDonough
is a tech and policy reporter at City & State.
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